Much of the commentary celebrating the career of Justice Stevens has rightly emphasized his admirable personal characteristics: the warmth and geniality he showed to everyone he worked with, his willingness to listen and to entertain opposing views, the respect he showed to lawyers and to his fellow judges. All this has much to be said for it, but such a soft focus blurs the edges of his personality, his intelligence, and his contribution to the law. He was demanding of himself and of his law clerks, competitive and insistent upon the highest standards, and willing to press an argument home against his adversaries. Any number of attorneys can testify to the uneasy feeling that they had as Justice Stevens politely asked them a question in oral argument. It could be about the logic of their position or the record in the case, but its ultimate import was always the same. Framed in the most polite terms, it was, “Excuse me, counsel, could you tell me why this obvious point doesn’t cause you to lose your case?”
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
On December 15, 2023, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Illumina, Inc. v. FTC. Although the court vacated and...
On January 17, the Supreme Court heard arguments in what are potentially the most significant commercial law cases of the last decade. In the...
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
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At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
The 1968 Fair Housing Act required local government recipients of federal money to take meaningful actions to affirmatively further fair housing (AFFH...
The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed...
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen...
On May 25, 2023, the U.S. Supreme Court dropped an absolute bombshell with its ruling in Sackett v. Environmental Protection Agency. Early assessments...
The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only...
Sandy Levinson has always taken secession arguments seriously. This is, in my eyes, one of his great virtues. There are very few scholars who would be...
In their intriguing article “Bioethics and the Moral Authority of Experience,” Nelson and colleagues (2023) provide important insight into an...
Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is...